During the recent trial of Unconstitutionality Arguition in Special Appeal No. 1,266,318, the Special Panel of Superior Court of Justice understood that an arrest performed as guarantee of a tax debt can be maintained even when the debt is subject to term-payment program created by Law No. 11,941/09 (REFIS IV).

In this case, the taxpayer sought at reforming a first-instance decision that had determined the maintenance of online arrest even after the company adhered to the program. The Federal Appellate Court of the 5th Region reformed that decision under the argument that the inclusion of the debt in term-payment program is a cause of suspension of enforceability of the debt as provided by Section 151, VI of the National Taxation Code, which does not justify the maintenance of a blockage of financial assets as guarantee.

The case was submitted to the Special Panel of STJ for an incidental analysis of the constitutionality of Sections 10 and 11 of Law No. 11,941/09 under the isonomy principle, with the purpose of verifying the legitimacy of different treatments granted by law to taxpayers that presented guarantee and the ones who did not. Indeed, Section 11 of this Law provides that the term-payment does not depend on a guarantee, except when there is an arrest in a tax foreclosure already filed, which would distinguish debts not guaranteed by arrest yet and the ones with a foreclosure already initiated and with arrest.

In the trial, led by the vote of Justice Sidney Benet, the prevailing opinion was that the isonomy principle was not violated, and this difference is justified by the fact that debtors already subject to arrest are less reluctant to pay the debt than the other ones. The Justice also understood that the provisions attacked authorize term-payment and do not provide on the suspension of enforceability of the debt, so Section 151, VI of the Taxation Code must be interpreted jointly with Section 11 of Law No. 11,941/09.

Justice Napoleon Nunes presented his vote understanding that the adhesion to term-payment program suspended the enforceability of the debts and, as a consequence, there would be no reason to maintain the blockage of assets. He also understood that the possibility of fraud raised by the administration does not apply, since the term-payment program is also granted without guarantee.

The Unconstitutionality Arguition was denied relief by the majority of votes. The decision will be formalized.